1. Introduction

1. Crimes of inciting racial and religious hatred and hatred based upon sexual orientation are by their very nature highly sensitive.

2. For this reason, and to ensure a consistent approach, all such cases are considered by specialist prosecutors in the Counter Terrorism Division of the CPS Special Crime and Counter Terrorism Division.

3. No charges can be brought without the consent of the Attorney General, who is the senior Law Officer for the Crown.

4. All offences can be committed in a public or private place, but not inside a dwelling, unless the offending words and behaviour were heard outside the dwelling, and were intended to be heard.

5. The courts in this country have the jurisdiction to try cases where a substantial measure of the activity has taken place here. That means that the fact that a server displaying content is located in another country does not automatically mean that a case cannot be charged in this country.

2. Inciting Racial Hatred – Section 18 of the Public Order Act 1986

6. This offence is committed when someone says or does something which is threatening, abusive or insulting and the person either intends to stir up racial hatred or makes it likely that racial hatred will be stirred up.

7. It covers behaviour such as making a speech, posting material online, displaying a poster, performing a play or broadcasting something on the media.

8. There are a number of different things that we have to prove before we can charge.

9. One of the first things that we have to prove is that the behaviour is threatening, abusive or insulting.

10. The courts have decided that:

these words should be given their ordinary meaning and it is not a question of law but one of fact for the court to determine.

behaviour can be annoying, rude or even offensive without necessarily being insulting;

there is no requirement that any person should actually feel threatened, abused or insulted.

11. We also have to prove racial hatred. The law says this is hatred against "a group of persons defined by reference to colour, race, nationality (including citizenship), or ethnic or national origins".

12. The courts have said that the term "race" should not be interpreted in a narrow or strictly legalistic sense. In one case the court said that the term 'African' is a racial group and in others that it could include the term "foreigners" and "immigrants."

13. In a case that decided that Sikhs are a racial group the court said that racial group includes those defined by their 'ethnic origins' and this includes "a group which was a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms was a common racial stock, in that it was that combination which gave them an historically determined social identity in their own eyes, and those outside of the group."

14. Jews can be either a racial group on the basis of ethnicity or a religious group. The context needs to be considered carefully to establish whether it is Jews as a racial group that is being targeted or Judaism as a religion.

15. We also have to prove hatred. The law does not set out what hatred means but the Oxford English Dictionary definition is "intense dislike for or a strong aversion towards." As a minimum this connotes the idea of hostility and it has been taken to be regarded as a strong concept, going beyond dislike, ridicule, causing offence or bringing distaste.

16. We also have to prove that the person intended to stir up racial hatred or makes it likely to be stirred up.

17. The requirement for us to prove an intention excludes any words or behaviour which is reckless rather than intentional and it also means that it is not necessarily enough to show that racial or religious tensions within a community have been stirred up.

18. Sometimes it may be obvious that a person intends to cause racial hatred; for example, when a person makes a public speech condemning a group of people because of their race and deliberately encourages others to turn against them and perhaps commit acts of violence. Usually, however, the evidence is not so clear-cut and we may have to rely upon people's actions in order to prove their intentions.

19. If we are not able to prove that a person intended to stir up racial hatred, we have to prove that, in all the circumstances, racial hatred was likely to be stirred up.

20. The courts have said that "likely" means more than merely possible or liable.

21. We have to consider the full context of the alleged behaviour, including the likely audience.

Inciting Religious Hatred - Racial and Religious Hatred Act 2006 and the Public Order Act 1986

22. This offence is committed if a person uses threatening words or behaviour, or displays any threatening written material, and intends to stir up religious hatred.

23. Inciting religious hatred is therefore more difficult for us to prove as it is limited to threatening words or behaviour and we have to prove intent.

24. In one case the Judge explained the meaning of "threatening" as follows: "What it doesn't mean, is it is not abusive or upsetting. It doesn't prohibit public discussion, criticism, antipathy, dislike, ridicule, insult or abuse of particular religions or their followers. That is free speech is not stopped. The word threatening should have its ordinary meaning. You should ask what would be the impact of the material on a reasonable member of the public. An objective test - would a reasonable member of the public consider them threatening?"

25. We also have to show religious hatred. In most cases we can determine whether or not it is racial or religious by looking at the language or words used by the person and what his/her intended aim is.

26. Although Judaism is a religion, Israel is not as its religious composition is drawn from a mixture of Jews, Muslims, Christians and Druze. Therefore comments about Israel cannot be regarded as referring to any particular religion.

27. Stirring up hatred means more than just causing hatred, and is not the same as stirring up religious tension. It must be a hatred that manifests itself in such a way that public order might be affected.

28. We also have to prove that the person intends to stir up religious hatred; recklessness is not enough.

Inciting Hatred On The Basis Of Sexual Orientation - Part 3A Public Order Act 1986

29. This offence is committed if a person uses threatening words or behaviour, or displays any threatening written material, and he intends to stir up hatred on the grounds of sexual orientation.

30. Like the offence of stirring up religious hatred, this offence is therefore more difficult for us to prove as it is limited to threatening words or behaviour and we have to prove intent.

31. The meaning of 'hatred on the grounds of sexual orientation' is expressly limited to orientation towards persons of the same sex, the opposite sex or both. It does not extend to orientation based on, for example, a preference for particular sexual acts or preferences.

32. The law says that discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices should not of itself be regarded as threatening or intended to stir up hatred.

Free Speech

33. When considering whether or not to prosecute such offences, we have to bear in mind that people have a right to freedom of speech. It is essential that in a free, democratic and tolerant society that people are able to exchange views, even when these may cause offence.

34. However, we have to balance the rights of an individual to freedom of speech and expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.

35. The freedom of expression defence for religious hatred says that nothing in the Act "...prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult, or abuse of particular religions, or the beliefs or practices of its adherents."

36. The freedom of expression defence for hatred on the grounds of sexual orientation says that "for the avoidance of doubt, the discussion or criticism of sexual conduct or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening".

37. There is no similar freedom of expression clause for racial hatred.

38. The offences that we have successfully prosecuted go well beyond the voicing of an opinion, free speech or causing offence.

7. Successful prosecutions

39. Details of all successful prosecutions can be found on the Special Crime and Counter Terrorism Division website. Some examples are set out below:

Inciting racial hatred

A. Philip Burgess

During the disorder in August 2011 Philip Burgess posted comments on his Facebook profile which encouraged others to participate in the disorder. One posting suggested disorder in King Street Manchester, which is exactly where serious disorder occurred later the same day. Burgess' postings included racist comments, one of which suggested 'bring the kkk', which formed the basis of an offence of inciting racial hatred contrary to section 19 of the Public Order Act 1986.

Burgess was sentenced to a total of three years' imprisonment for four offences including encouraging riot contrary to sections 44 and 58 of the Serious Crime Act 2007 and inciting racial hatred contrary to section 19 of the Public Order Act 1986.

B. Martin Hartshorn

Martin Hartshorn posted comments on social networking sites and Facebook during August 2011. Hartshorn's postings encouraged disorder in the Grimsby area. There were no reports of disorder in the Grimsby area. Hartshorn's postings included racially offensive comments and encouraged the burning of what he referred to as 'paki shops', takeaways and a local Islamic centre.

Hartshorn pleaded guilty to one offence of encouraging riot contrary to sections 44 and 58 of the Serious Crime Act 2007 and one offence of inciting racial hatred contrary to section 19 of the Public Order Act 1986 and was sentenced to three years' imprisonment.

C. Abu Hamza

Abu Hamza was convicted of six counts of soliciting to murder, two counts of using threatening words or behaviour likely to stir up racial hatred, one count of possessing threatening recordings and one count of possession of a document likely to be useful to a terrorist. He was sentenced to seven years' imprisonment.

The threatening words likely to stir up racial hatred included a speech advocating the killing of Jewish people and speeches including references to Jewish people controlling the US and UK Governments. He endorsed the 'jihad of the gun and the bomb'.

D. Neil Martin

One week after the murder of Anthony Walker in Liverpool, Neil Martin accessed the condolences page of a website set up to commemorate the teenager. Using the pseudonym 'Genuine Scouser' he posted a number of racist messages that were removed some hours later by the website administrator. The language used encouraged violent acts against the family of Anthony Walker, with a number of grossly offensive remarks about the black community.

Martin was charged with inciting racial hatred and was sentenced to two years and eight months' imprisonment.

E. Michael Heaton and Trevor Hannington

Michael Heaton and Trevor Hannington, two leading members of the Aryan Strike Force (ASF), had made a large number of postings on the ASF forum which included calls for the killing of Jews and black people. The postings also demonstrated hatred towards Jews, black people, Muslims and people of Asian heritage.

Heaton was found guilty of inciting racial hatred contrary to section 18 of the Public Order Act 1986. He was sentenced to a term of 30 months' imprisonment. Hannington was convicted of inciting racial hatred, three offences of collecting information likely to be of use to a person committing or preparing an act of terrorism contrary to section 58 of the Terrorism Act 2000 and the one offence of disseminating a terrorist publication contrary to section 2 of the Terrorism Act 2006. He was sentenced to a term of two years' imprisonment.

F. Simon Guy Sheppard and Stephen Whittle

Simon Guy Sheppard and Stephen Whittle were convicted of stirring up racial hatred by possessing and publishing anti-Semitic written material, contrary to Section 19(1) and 23(1) of the Public Order Act 1986. Sheppard received a term of imprisonment of 4 years and 10 months and Whittle 2 years and 4 months. The sentence was partly reduced on appeal to 3 years and 10 months and 1 year and 10 months respectively. The judge, when passing sentence, said he had rarely seen or read and had to consider material that was so abusive and insulting in its content toward racial groups within society in this country.

Inciting religious hatred

G. Bilal Ahmad

In May 2010 a British student, Roshanara Choudhry, stabbed her local MP, Stephen Timms, during a constituency meeting. Choudhry said she had become convinced that this was her obligation after watching videos of radical preachers and because Mr Timms had voted in favour of the war in Iraq. On 4 November 2010 Choudhry was sentenced to life imprisonment for attempted murder. The same day Bilal Ahmad, published an article on a well known extremist website based in the U.S. In this article, he praised Choudhry, provided religious justification for her actions, produced a list of all of the MPs who had also voted in favour of the war in Iraq, provided instructions on how to make appointments with them and provided a link to a supermarket website which sold knives.

Ahmad was found to have a considerable volume of other online activity, including threatening comments about Hindus posted in March 2009 in response to a newspaper article about Muslim girls being targeted for wearing the veil to college. Documents were also found on Ahmad's computer which either promoted terrorism or contained information likely to be useful to potential terrorists.

Ahmad was sentenced for soliciting murder contrary to section 4 of the Offences Against the Persons Act 1861, stirring up religious hatred contrary to s29 Public Order Act 1986 and three offences of collecting material likely to be of use to a person preparing or committing an act of terrorism contrary to s58 Terrorism Act 2000. He received an extended prison sentence of 17 years' imprisonment. The custodial element was 12 years.

Satinderbir Singh started a thread on his Facebook profile about the risks to Sikh girls should they go out with men from the Muslim community. Approximately 40 people participated in the Facebook conversation over a period of about six hours. During that time Satinderbir Singh, Harjinder Singh Athwal and Damanpreet Singh's postings were of such a nature as to incite religious hatred and were threatening in content.

Shortly afterward a dummy Facebook profile was created for a 15- or 16-year-old Sikh girl. The intention was that when Muslim men interacted with the profile they would be challenged about their behaviour. However, it was two Sikh men that interacted with the profile. One of the men was followed, threatened, humiliated at work, and, what was clear from extensive communications data found by the police, was that a plan had been hatched to attack this man with weapons. The second victim set up a meeting with whom he thought was a girl, but was targeted and attacked by Mr Banning, Mr Damanpreet Singh and Mr Athwal who used nunchucks and an imitation firearm. An arsenal of over 100 hand held weapons, nunchucks, knives, stun guns, knuckle dusters and batons were later found at Mr Banning's address.

Mr Banning also pleaded guilty to possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of Firearms Act 1968 and received 18 months' imprisonment consecutive, and importing offensive weapons for which he received a further 3 years and 6 months, making his total sentence one of 7 years' imprisonment.

Inciting hatred based upon sexual orientation

I. Ihjaz Ali, Razwan Javed and Kabir Ahmed.

In the lead up to the Derby Gay Parade on 10 July 2010, the defendants distributed a number of leaflets entitled 'Death Penalty?' outside a Mosque and by house to house distribution in Derby. The 'Death Penalty?' leaflet was printed on both sides. On one side was photograph of a wooden mannequin with a hangman’s noose around the mannequin’s neck, in a pose suggesting a person having been hanged. There were four different pieces of writing on that side of the leaflet, including: '1533 In England the Buggery Act was passed that made buggery punishable by hanging.' The other side of the leaflet had the title "Adam and Eve not Adam and Steve" followed by some text containing a reference to the story of Lot. They were each convicted of distributing threatening written material intending to stir up hatred on the grounds of sexual orientation contrary to section 29C(1) of the Public Order Act 1986. Ihjaz Ali was sentenced to two years' imprisonment and Razwan Javed and Kabir Ahmed were sentenced to 15 months' imprisonment.